District Attorney Jon Hopkins released the report on Wednesday, concluding that, “while there is some dispute over the circumstances leading to the firing of his handgun, there is no evidence to support any criminal intent” on the part of Deputy Francisco Rivero, running this year to unseat four-term incumbent Sheriff Rod Mitchell.
The timing of the release, just under six weeks before the Nov. 2 election, led Rivero to accuse Hopkins of playing politics with the report.
“It's shocking,” he said this week, accusing Hopkins of “complete speculation” in his suggestions about the cause of the shooting, which, among other things, Hopkins proposed could have been the result of an “accidental discharge.”
While Rivero accused Hopkins and Mitchell of being in collusion to release the document late, Mitchell was as upset by the release as Rivero.
“As far as I am concerned, this matter was concluded in 2008,” Mitchell said “Our internal investigation cleared the deputy within days of the shooting and he was returned to full duty. The district attorney’s staff cleared the shooting seven months later and we issued the memorandum to the deputy concluding the matter officially at that time.”
The incident occurred on the evening of Feb. 19, 2008, in Cobb, when Rivero and fellow deputy, Michael Sobieraj, were assigned a missing person call regarding Victor Rodin. They met with Rodin's girlfriend who allowed them to enter her home, where they found Rodin inside the home, which only had a light on in the basement.
During a confrontation with Rodin – who reportedly had pepper spray in one hand and a lighter in another – Rivero shot a round at Rodin, with the bullet hitting a nearby door frame, according to investigative documents.
Hopkins' report states that Rivero “does somewhat contradict himself relating to whether he could see the object in the subject’s hand,” which relates to the matter of whether or not the shooting was justified.
“Deputy Rivero tells Sergeant Gary Hall, who is the first to talk to him, that the male subject was holding a lighter in one hand and a can of 'pepper spray' in the other,” Hopkins wrote. “Later, Deputy Rivero tells Detective Paulich that he could not see the object in the male subject’s hand and that is why Deputy Rivero did not know what the male subject was grabbing and pointing at Deputy Rivero.”
Rivero said there were no conflicts in his statements.
“I intended to shoot that individual because I felt my life was in jeopardy,” he said.
He added, “I made a split-second decision based on the information I had in front of me and I pulled the trigger intentionally.”
Rivero, who worked for the San Francisco Police Department from 1984 to 1990, said, “I was involved in one shooting in San Francisco and it was also ruled justifiable.”
He said he was off for a day of leave after the February 2008 shooting before returning to work.
Rodin, who ran off after the shooting, would be captured a day later and charged with damaging utilities, two counts of resisting or obstructing an officer and possession of tear gas, according to court records.
The District Attorney's Office moved to dismiss the case on June 27, 2008. Doug Rhoades was the defense attorney assigned to the case. He said he handled the case only briefly before it was dismissed.
Sheriff's office issues finding in 2008
On Sept. 25, 2008, Captain James Bauman of the Lake County Sheriff's Office issued Rivero a memorandum regarding the department's final disposition on its internal affairs investigation into the incident. Rivero shared a copy of the document with Lake County News.
The memo stated, in part, “When you located Rodin, a convicted felony with a history of unstable behavior, his actions provoked a critical situation in which you responded by discharging your firearm in defense of your own life.”
It continued, “The circumstances surrounding that incident have been thoroughly investigated in accordance with fatal incident protocol and it has been determined that your actions were appropriate, justified, and in accordance with department policy. No further action shall be taken and you may consider the matter closed.”
Bauman confirmed to Lake County News that he wrote the memo, and that it related wholly to the department's internal investigation of the matter. He said the sheriff's office and the district attorney conduct separate investigations in such incidents.
Hopkins told Lake County News that he informed the sheriff's office when his office finished its investigation that he would not be filing criminal charges against Rivero, and confirmed the dropped charges against Rodin.
He said the sheriff's office conducts a separate, confidential internal affairs investigation relating to potential violations of policies and procedures, while his office does a criminal investigation to determine whether to file criminal charges, “which is totally our call.”
The sheriff's office investigation, which Lake County News obtained a copy of through a Public Records Act request, included interviews with Rivero, Sobieraj, Rodin's girlfriend and a neighbor. Detectives went over the scene, where it was determined that Rivero was standing within 6 feet of the bullet hole in the door frame.
Detectives sent the bullet and cartridge case to the Department of Justice, which verified it came from Rivero's .45-caliber Glock pistol. The last of the supplemental reports for the investigation was dated July 2008.
Sobieraj told Lake County News that he considered the district attorney's report “fairly accurate.”
He graduated from the academy six months before the shooting, and worked in the south county with Rivero for about a year.
As to statements in the report regarding perceived contradictions in Rivero's interviews, Sobieraj said of his fellow deputy, “I just know that he cannot handle stress, so his recollection of events changed.”
He said Rivero told him afterward that he never said Rodin had pepper spray but Sobieraj remembered Rivero's statements during the incident about the pepper spray, which Sobieraj couldn't see from his vantage point.
When people ask Sobieraj why he didn't also shoot – or have “sympathy fire,” which is when a person starts shooting after other shots are fired – he said it's because he didn't think Rodin was going to kill them and he didn't see a weapon.
“Otherwise I would have let a round go, but I didn't,” he said.
Sobieraj noted that Rodin's girlfriend's story changed. He added that Rodin was lucky he didn't get shot, as the door frame where Rivero's bullet lodged was where Rodin's center mass had been. He thinks splinters of wood from the door frame hit Rodin, making him think he had been shot.
A district attorney's investigator interviewed Sobieraj that same night about the incident, he said.
Sheriff disagrees with district attorney's findings
Mitchell said this past January Hopkins informed him that he was considering reopening the case.
“I responded by sending him an e-mail in strong opposition to any member of my department being subjected to a second investigation into a use of force matter that is already concluded,” Mitchell said.
He provided Lake County News with a copy of the e-mail in question, dated Jan. 13, 2010.
“I am writing in regard to comments you made yesterday regarding your consideration of re-opening the 2008 officer involved shooting involving Frank Rivero,” Mitchell wrote.
“I have personally reviewed the records that we have on this matter again today. It appears that my staff worked in concert with yours and it also appears that your staff gave the shooting a clearance also. Please let me know if the purpose for this investigation is driven by new evidence. I will not stand in the way of your job but without new evidence I am obliged to let you know that I oppose having a member of my department subjected to a second investigation of an incident that is already concluded.”
Mitchell said Friday that he was “troubled” by both the timing and the contents of Hopkins' report on the incident.
“Some of the findings are inappropriate and I do not believe that a 'clearance' on a use of force case should conclude with a determination that the deputy was wrong either way,” he said.
Hopkins confirmed that he had contacted Mitchell early this year about his concerns and that Mitchell had responded with an e-mail.
He said he had previously determined it was not a criminal filing, but he had other concerns.
“It troubled me that we had the inconsistencies that we did,” Hopkins said.
He said district attorneys have obligations under the US Supreme Court's Brady decision to inform defense attorneys if there are credibility issues that have arisen for deputies and police officers.
Hopkins said officials in his position are advised to err on the side of caution in such instances, otherwise they're accused of unethical conduct.
He said he and his staff went through an analysis that didn't require contacting Mitchell or his staff, and then he ended with the findings released this week. Hopkins e-mailed Mitchell a copy to let him know he was releasing it to the media.
Mitchell said he received the e-mail late Wednesday but didn't open it until the following day, and was summarily surprised.
A review of officer-involved shooting reports issued by the District Attorney's Office over the last four years indicates lengthy time frames for conclusion, but none as lengthy as this one.
In December 2006, Hopkins' predecessor, Gary Luck, issued a report about a fatal shooting by the California Highway Patrol of Eugene Peters, who led the CHP on a high speed chase that occurred two months earlier.
Hopkins' final report on the fatal shooting in Clearlake of David Vestal, which occurred on June 30, 2008, was released on Feb. 13, 2009, and the nonfatal shooting of Sean Pryor on Sept. 30, 2009, also in Clearlake, had a final report issued this past May 5.
Hopkins' report is published in its entirety below.
E-mail Elizabeth Larson at
IN THE MATTER OF AN OFFICER INVOLVED SHOOTING FEB. 19, 2008
LAKE COUNTY DEPUTY SHERIFF FRANCISCO RIVERO
LAKE COUNTY DISTRICT ATTORNEY’S FINAL REPORT
SUMMARY
On February 19, 2008, approximately 7:34 pm, Lake County Sheriff’s Department Deputies Michael Sobieraj and Francisco Rivero were assigned a call regarding a missing person adult at 10310 Brookside Drive, Whispering Pines, Cobb. A male subject had been reported missing by his mother, saying he “took off into the woods Sunday after a verbal argument with his girlfriend.” Deputy Sobieraj and Rivero located the male subject inside the residence. During a confrontation with the male subject, Deputy Rivero discharged his weapon, lodging the bullet in a door frame. The male subject then fled out of a second story window and into the woods. Deputy Sobieraj then reported shots fired and officers responded to the scene from the Lake County Sheriff’s Office, the California Highway Patrol and a K-9 Officer from Lakeport Police Department.
INVESTIGATION
When the missing person report came in, Deputy Sobieraj said he recognized the names of the persons involved in this report. Deputy Sobieraj, the primary officer, looked up the details from a February 17, 2008 contact and read the report. It had been reported that the male subject had been experiencing mental problems and was hospitalized some months earlier. When the male subject was released he came to his former girlfriend’s home and took up residence. When she asked him to leave on February 17, 2008, he destroyed her telephone, took a large number of pills and left. His mother then reported him missing on February 19, 2008.
Deputies Sobieraj and Rivero met with the former girlfriend at a gas station on Cobb, and she accompanied them to her home and consented to their entry into her home. Based on an examination of the property, they each believed that the male subject was probably in the home at that time. Both Deputies entered the home through the kitchen asking the former girlfriend to wait outside.
As they entered, Deputy Sobieraj said he had to use his weapon light as he could not see any lights on in the residence. Deputy Rivero said he did not have to use his flashlight as there were lights on somewhere in the residence. Both deputies had their guns drawn inside the residence. Deputy Sobieraj loudly announced several times Sheriff’s Department. When they got to a small hallway toward the rear of the residence, Deputy Sobieraj announced, “Sheriff’s Department,” and heard a voice say, “yeah, what the fuck you want.”
The male subject then came out of the bedroom into the hallway, but Deputy Sobieraj reported that his view of the male subject was partially obstructed by a hallway wall that separates the living room and hallway, and that Deputy Rivero would have had a clearer view of the male subject from his position. Both deputies at this time had the male subject at gunpoint. Deputy Sobieraj said he could hear Deputy Rivero saying “drop the pepper spray, drop the pepper spray.” Deputy Sobieraj was unable to see pepper spray in the the male subject’s hand from his position. Deputy Sobieraj said he was only able to see the male subject’s right side. Deputy Sobieraj said the male subject was holding a Bic type lighter in his right hand. Deputy Sobieraj said the male subject would take an aggressive step forward then take a step back. Deputy Sobieraj said the male subject had a type of “fight look” in his face, a strange look, like something was going to happen. Deputy Sobieraj said the male subject would not comply with any of the commands given.
Deputy Sobieraj said they continued to give the male subject orders. Deputy Sobieraj said when they told the male subject to turn around, he darted back behind the wall and Deputy Sobieraj could not see him. Deputy Sobieraj said there was a shot, but he did not see any muzzle flash. Deputy Sobieraj said he did not know who shot. Deputy Sobieraj said he initially thought the male subject may have shot, so Deputy Sobieraj said he took cover behind the wall. Deputy Sobieraj said he then heard the door to the bedroom slam. Deputy Sobieraj said he came back around to where he could see the bedroom door and saw it was closed. Deputy Sobieraj saw a bullet hole in the bedroom door casing which appeared to be an entrance hole. Seeing the entrance hole for the bullet, Deputy Sobieraj knew the shot would have come from Deputy Rivero. Deputy Sobieraj said when he took a position of cover, he notified Central Dispatch shots were fired. The male subject was now in the bedroom and had slammed the door closed.
Deputy Sobieraj said the girlfriend had come into the house, screaming. Deputy Sobieraj said he told the girlfriend to go and get into her car. Deputy Sobieraj said with the door closed they were ordering the male subject to come out and identifying themselves as Sheriff’s Department. Deputy Sobieraj said they could hear rustling inside the room. The male subject ultimately fled the residence by jumping out of a second story window.
Deputy Sobieraj said when the other units arrived and they cleared the bedroom, a large can of pepper spray was located on the bedroom floor. Detective Jerry Pfann seized the pepper spray as one of the items of evidence. It is in evidence and measures 6 ¼ inches tall. The top 1 ¾ inches is black and the remaining 4 ½ inches has a bright red glossy label on it.
When Sgt. Gary Hall arrived later, Deputy Rivero told him he and Deputy Sobieraj had “entered the house and located the male subject in a doorway holding a lighter in one hand and a can of pepper spray in the other.” With weapons drawn, they “ordered the male subject to drop the item several times, but he wouldn’t comply.” The male subject then bent over and picked up something black off the floor and pointed it at him. Deputy Rivero said he then discharged his weapon at the male subject.
Early in the morning of February 20, 2008, Deputy Rivero was interviewed by Detective Corey Paulich and said that he entered the home and drew his weapon. He found the male subject standing in the hallway just outside a bedroom door with a lighter in his right hand and something in his left hand that he was concealing behind his left leg. Deputy Rivero said he told the male subject several times to show his hands, but the male subject kept the lighter in his right hand and threw the object in his left hand out of sight near the bedroom door. Deputy Rivero told the male subject to walk toward him, put his hands on top of his head and turn around. The male subject stepped out from behind the wall that separates the living room and hallway. Deputy Rivero said the male subject was not complying with the commands Deputy Rivero was giving. Deputy Rivero told the male subject several times to turn around and put his hands on top of his head. Deputy Rivero said the male subject was just standing there doing “weird stuff.
Deputy Rivero described the male subject as looking as if he “was cooking up some plan. He had that look on his face.....like he was looking for a way out....or something to do, that he wasn’t going to go peacefully.” Deputy Rivero said he and Deputy Sobieraj had the male subject at gun point as they kept giving him orders, when all of a sudden, the male subject “bolted back”, “took a step back then turned around, went behind the wall and kneeled down, and reached down and grabbed something.” Deputy Rivero did not know exactly what the male subject grabbed, but he then “came up, like in a hostile fashion and pointed something that was made out of metal, or black” at Deputy Rivero. Deputy Rivero said he fired one round, after which the male subject screamed “you shot me” and retreated into the bedroom, slamming the door.
Deputy Rivero said that Sergeant Hall arrived and asked Deputy Rivero what happened. Deputy Rivero told Sergeant Hall “the guy made a furtive, that I was in fear that he was going to, like, shoot me or take my life.” Deputy Rivero said he fired one round and held his fire when the male subject retreated. Deputy Rivero described the actions of the male subject as slow motion. Deputy Rivero said he waited for “the very last second until I saw his come up and point whatever he had in his hand at me.” After the shot was fired the male subject was yelling “you’ve shot me.”
Deputy Rivero was asked what he was thinking when the male subject bent down and made a furtive movement. Deputy Rivero described that movement as “slow motion.” Deputy Rivero said he did not want to shoot the male subject and waited for “the very last second until I saw him come up and point whatever he had in his hand at me.” Deputy Rivero described the shooting as a “movie in slow motion.” He could “almost see the shell ejecting...and could smell the gun powder.” Deputy Rivero thought he had hit the male subject because he started screaming, “You’ve shot me.” Deputy Rivero said from the minute he engaged the male subject, the male subject presented a threat. Deputy Rivero described the male subject as aggressive and non- complying. The only thing Deputy Rivero could remember the male subject saying was “this is my house.” Deputy Rivero said he thought the male subject was going to kill him when he made the furtive movement. Deputy Rivero said he was only four to six feet away from the male subject at the time. Deputy Rivero said if he didn’t shoot, he thought the male subject would have killed him.
Detective Paulich also interviewed the girlfriend who said after she let the Deputies into her house, she followed them inside and heard them telling the male subject to put his hands up and heard Deputy Rivero telling him to put down the pepper spray. She said she could see the Deputies but not the male subject. She said this went on for about one minute and then she then heard a gun shot. She indicated that she keeps pepper spray in her bedroom.
The next day, she called Detective Paulich and said she could see the male subject’s entire body and saw he was holding a can of pepper spray in his left hand, but didn’t believe he had anything in his right hand. The deputies fired a shot and she then saw the male subject take a quick step towards the bedroom to the right.
District Attorney Investigators also interviewed the former girlfriend a week later and she said officer number one (Rivero) had his gun pointed at the male subject and said put your hands up. She said the male subject had a can of pepper spray in his left hand and his right hand was at his side. She said the officer said maybe three times to put up your hands. She said the male subject started to lift his hands and the officer fired the shot. She said as he was raising his hands, the male subject then jumped to the side just prior to the officer firing the shot. She also reported that Deputy Rivero screamed and swore at her and was screaming and swearing when telling the male subject to open door after the shot was fired.
The male subject was interviewed by District Attorney Investigators and said he came out of the bedroom and saw two Deputy Sheriffs who ordered him to drop the items he had in his hands. He said he had pepper spray in his left hand and a lighter in the right hand, because he had seen lights in the house and thought someone had come in to rob the house. He said he dropped the pepper spray first and then the lighter. He said the only order he did not comply with was to put his hands up and turn around. He said at that point he was scared of the older Deputy (Rivero) because he was “like in a rage” and way too aggressive. He said all of a sudden the hair on his neck stood up and he said to himself something is just not right, something is wrong. That is when he jumped back into the doorway and shut the door.
FINDINGS
There is not sufficient evidence to support the filing of criminal charges against Deputy Francisco Rivero for discharging his firearm. The male subject was not hit by the one bullet fired by Deputy Rivero, and while there is some dispute over the circumstances leading to the firing of his handgun, there is no evidence to support any criminal intent on Deputy Rivero’s part.
Determining the exact circumstances in this incident is complicated by the mental history of the male subject, both previously and on that night, and the changing of the version told by the former girlfriend of the male subject, in whose residence the incident occurred.
If Deputy Rivero’s version is true, then he was justified in firing his weapon in self-defense. Deputy Rivero does somewhat contradict himself relating to whether he could see the object in the subject’s hand. Deputy Rivero tells Sergeant Gary Hall, who is the first to talk to him, that the male subject was holding a lighter in one hand and a can of “pepper spray” in the other. Later, Deputy Rivero tells Detective Paulich that he could not see the object in the male subject’s hand and that is why Deputy Rivero did not know what the male subject was grabbing and pointing at Deputy Rivero.
While there is some question as to what the former girlfriend actually saw, her first version was that she couldn’t see the male subject, but did hear Deputy Rivero tell the male subject to “drop the pepper spray.” That version is confirmed by Deputy Sobieraj, who also hears Deputy Rivero order the male subject to “drop the pepper spray, drop the pepper spray.” That would indicate that Deputy Rivero knew the male subject had pepper spray and had discarded it.
Both Deputies describe the male subject’s behavior as somewhat erratic and unpredictable, and taken with the reporting former girlfriend’s description of the mental problems the male subject was experiencing and his threatening behavior, a Deputy would be expected to be on the alert and to be prepared for an aggressive move on his part. Therefore, a conclusion that self-defense was needed might be justified a little quicker than in some other circumstances. However, it also might lead to a Deputy being a little more jumpy and having a higher degree of an “adrenaline response.”
Therefore, if self-defense is not justified in this incident, the most likely other explanation would be that Deputy Rivero had his finger on the trigger and was startled by the erratic behavior of the subject, resulting in an “accidental discharge.” The circumstances in this case support the possibility of an accidental discharge. An accidental discharge explanation of this incident would not justify filing any criminal charges based on the firing of the weapon.
If neither self-defense nor accidental discharge were the explanation for this shooting, there is no support in the evidence for any allegation that Deputy Rivero purposely shot the door frame for any purpose, or attempted to shoot the male subject for any other reason. Therefore no criminal charges will be pursued based on either of these theories.
Since it is difficult to say beyond a reasonable doubt what exactly Deputy Rivero believed occurred, there would not be support for criminal charges of knowingly making a false report to law enforcement.
Jon E. Hopkins, District Attorney
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